In 2023 Australia became the first country to prohibit anyone under 16 from opening or maintaining an account on mainstream social-media platforms.
Twelve months later, critics say the policy has failed to keep young people offline, and a landmark High Court case now argues the law violates the Constitution.
Below is a deeper look at how the ban emerged, why it is under fire, and what the court’s decision could mean for digital policy worldwide.
Background: How the Ban Came to Be
After several highly publicised cases linking social-media use with teenage self-harm, the federal government fast-tracked the Online Safety (Protecting Children) Act 2023.
The legislation made it illegal for platforms such as Instagram, TikTok, Snapchat, Facebook and Twitter (now X) to host users younger than 16, unless parental consent was verified through government-approved processes.
Key Provisions of the Ban
• Platforms must block account creation for anyone who cannot produce certified proof of age.
• Existing accounts held by under-16s must be suspended until age can be verified.
• Non-compliant companies face fines of up to AU$7.5 million or 10 % of annual Australian revenue.
• The eSafety Commissioner may issue mandatory takedown notices within 24 hours for suspected breaches.
Implementation and Enforcement Issues
Age-Verification Technology
Australia endorsed facial-recognition and digital-ID checks, but large platforms claim the methods are unproven at scale and raise privacy concerns.
A leaked eSafety report shows that fewer than 15 % of new users were successfully verified in pilot programs.
Platform Compliance
Most companies adopted a “best-efforts” approach—adding extra age prompts but avoiding aggressive takedowns.
The eSafety Commissioner has issued only four infringement notices, and none of the major platforms have been prosecuted.
Effectiveness After One Year
Independent researchers at the University of Sydney surveyed 2,000 students aged 12-17: 91 % still held at least one active social-media account.
VPN use among teenagers jumped 38 % year-on-year.
Meanwhile, Kids Helpline data show no measurable decline in cyberbullying reports.
The Constitutional Challenge
In April 2024 digital-rights group LibertyNet Australia, joined by two families and the nonprofit Youth Voice, lodged a High Court application seeking to strike down the under-16 ban.
The plaintiffs argue the law contravenes Australia’s implied freedom of political communication and exceeds the Commonwealth’s legislative power over telecommunications.
Main Legal Arguments
• Implied freedom of political communication: Social-media platforms are modern public squares; blanket removal of under-16s stifles youth participation in political debate.
• Proportionality: The restriction is not tailored and therefore fails the Lange/McCloy proportionality test.
• Section 92 trade clause: By imposing onerous conditions on global platforms, the Act arguably burdens interstate and international commerce.
• Privacy concerns: Mandatory facial recognition could breach the right to bodily integrity recognised in previous High Court dicta.
Government’s Defence
The Attorney-General contends the legislation is a “protective measure” squarely within the communications power (s 51(v)) and that any burden on political speech is minimal, because teenagers may still post via parent-approved accounts.
Canberra also cites comparative European data showing potential mental-health benefits.
Public and Expert Opinion
• Parents’ groups: Split between those welcoming a safety net and those fearing overreach.
• Child psychologists: Argue that digital literacy, not prohibition, is the long-term solution.
• Tech industry: Warns of precedent for global “balkanisation” of the internet.
• Constitutional scholars: Note that the High Court has rarely expanded implied rights, making the outcome uncertain but potentially transformative.
International Context
Several US states (Utah, Arkansas, Ohio) have introduced age-gating laws, while the EU’s Digital Services Act demands stricter child-safety measures.
Governments in the UK and Canada are closely monitoring Australia’s legal battle to gauge whether outright age bans can survive judicial scrutiny.
Possible Outcomes and Implications
1. Law upheld in full: Sets a global benchmark, forcing platforms to invest heavily in age-verification tech.
2. Law struck down partly: Court may require narrower provisions, such as opt-in parental controls.
3. Law struck down entirely: Would energise digital-rights advocates and reshape future online-safety proposals in Australia.
What Comes Next?
The High Court has fast-tracked the case for August 2024 hearings, with judgment expected before year’s end.
Regardless of the verdict, Canberra has pledged a broader review of online-safety policy, and industry observers expect fresh debates on the balance between child protection and digital freedoms.
